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Law of Evidence 5th edition [Mīkstie vāki]

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  • Formāts: Paperback / softback, 956 pages
  • Izdošanas datums: 24-May-2013
  • Izdevniecība: Sweet & Maxwell
  • ISBN-10: 0414025628
  • ISBN-13: 9780414025622
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Law of Evidence 5th editionPalielināt
  • Formāts: Paperback / softback, 956 pages
  • Izdošanas datums: 24-May-2013
  • Izdevniecība: Sweet & Maxwell
  • ISBN-10: 0414025628
  • ISBN-13: 9780414025622
Citas grāmatas par šo tēmu:
Permanent link: https://www.kriso.lv/db/9780414025622.html
Dennis the Law of Evidence provides thorough analysis of the law of evidence, while placing the subject within its theoretical context. The work goes beyond other textbooks to explain the intricacies of the law of evidence while still remaining easy to understand. The information is presented in a logical structure following on from the introduction of the basic concepts through to the exclusionary rules of the law of evidence. Dennis offers an integrated approach to evidence which includes essential doctrinal analysis. It takes account of evidence theory, psychological research on information processing and retrieval, socio-legal work on police investigations, and jury research projects.
Preface to the Fifth Edition v
Table of Cases
xxiii
Table of Statutes
lxxiii
Table of Statutory Instruments
lxxxiii
Table of European, International and Foreign Legislation
lxxxv
Abbreviations lxxxvii
PART I UNDERSTANDING EVIDENCE: THE FOUNDATIONS OF THE LAW
1 An Introduction To The Law Of Evidence
A Evidence, Inference and Proof
1(2)
B Concepts and Terminology
3(12)
1 Materiality and the objects of proof
4(1)
(A) Facts in issue
5(2)
(B) Evidentiary facts (facts relevant to the facts in issue)
7(5)
(C) Facts relating to the credibility of witnesses
12(1)
(D) Facts relating to the admissibility of evidence
13(1)
2 Relevance and admissibility
14(1)
C The Character of the Law of Evidence
15(5)
1 Civil and criminal proceedings distinguished
17(1)
2 Criminal proceedings
18(1)
3 The multiplicity of styles of legal proceedings
19(1)
D The Development of the Law of Evidence
1 Legislative reform
20(4)
2 Recent developments
24
2 The Aims Of The Law Of Evidence
A Introduction: Evidence, Legal Process and Adjudication
1(2)
B The Rationalist Model of Adjudication
3(7)
1 Constraints on freedom of proof
(A) Expense and delay
5(1)
(B) Procedural fairness
6(1)
(C) Avoidance of error
7(1)
(D) Pursuit of other values
8(1)
2 Settling competing objectives
9(1)
C Individual Rights and the Law of Evidence
1 The foundation values for individual rights
10(2)
2 The right against wrongful conviction
12(3)
D The Human Rights Act 1998
15(7)
E Legitimacy of Adjudication
22
3 Relevance And Admissibility
A Introduction
1(1)
B Relevance
1 Stephen's definition
2(4)
2 Logical relevance
6(2)
3 Logical relevance and exclusionary discretion: the "costs" of admission
8(2)
4 Sufficient relevance
10(1)
(A) Superfluity, delay and expense
11(1)
(B) Multiplicity of issues
12(1)
(C) Confusion and misleading of the jury
13(1)
(D) Remoteness
14(4)
5 Case study of relevance I: "lifestyle" evidence in drugs cases
18(3)
6 Case study of relevance II: the lies of the accused
21(3)
C Exclusionary Rules
24(2)
D Exclusionary Discretion in Criminal Cases
26
1 Discretionary exclusion at common law
27(1)
(A) Evidence whose prejudicial effect exceeds its probative value
28(1)
(B) Fairness to the accused
29(2)
2 PACE section 82(3): the preservation of the common law
31(1)
3 PACE section 78: protection of the fairness of the proceedings
32(1)
(A) The legislative history of section 78
33(1)
(B) The ordinary meaning of section 78 read in the context of PACE
34(2)
(C) Judicial opinion supporting a wide application of section 78
36(2)
(D) Judicial opinion rejecting a wide application of section 78
38(3)
(E) General principles relating to the application of section 78
41(1)
4 The rationale of discretionary exclusion
42
4 Facts And Factfinding
A Introduction
1(7)
B Questions of Fact and questions of Law
1 The basic distinction and the allocation of decision-making
3
2 Qualifying the distinction and blurring the division of function in jury trials
4
3 Submissions of no case to answer
7
C Legal Controls on Factfinding
8(5)
D Fact-Scepticism and the Construction of Knowledge
1 Reconstructing a "true" reality
10
2 The social contingency of facts
13(3)
E Theories of Factfinding
16
1 Wigmorean analysis
19(3)
2 Mathematical models of reasoning
22(8)
3 Narrative and story-telling
30
PART II OBTAINING EVIDENCE: PRE-TRIAL PROCEDURES AND THE REGULATION OF ACCESS
5 The Privilege Against Self-Incrimination And The Right To Silence
A Introduction
1(2)
B The Relationship of the Privilege against Self-Incrimination and the Right to Silence
3(2)
C The Privilege against Self-Incrimination
1 The privilege against self-incrimination at common law
(A) Civil proceedings
5(2)
(B) Criminal proceedings
7(1)
2 Statutory restrictions on the privilege
8(3)
3 The privilege against self-incrimination and ECHR article 6
(A) Incorporation of the privilege into article 6
11(3)
(B) Scope of the privilege
14(3)
D The Right To Silence
1 The relevance of silence
17(2)
2 The common law right lo silence in the police station
19(3)
3 Statutory reform of the right to silence
22(2)
4 Section 34 and the ECHR
24(1)
5 The interpretation of section 34
(A) The statutory conditions and the nature of the test
25(1)
(B) Facts which it would be reasonable to expect the accused to mention
26(3)
(C) Failure to "mention"
29(1)
(D) Reasons for silence and legal advice to remain silent
30(5)
(E) Prima facie case
35(1)
(F) Proper inferences
36(1)
(G) Exclusionary discretion
37(1)
(H) Continued application of common law
38(2)
E Theories of Underlying Purposes and Values
40
1 Protection of the innocent against wrongful conviction
41(3)
2 Presumption of innocence
44(3)
3 Protection of privacy
47(2)
4 Protection from cruel choices
49(1)
5 Legitimacy and abuse of power
50
6 Confessions
A Introduction
1 Confessions and criminal justice
1(2)
2 The meaning of "confession "
3(1)
3 The issues raised by confession evidence
4(3)
B Section 76: The Rules of Admissibility
1 Confessions admissible as exceptions to the hearsay ride
7(3)
2 Prohibited methods of obtaining confessions--procedural issues
10(4)
3 The rule against oppression
14(1)
(A) "Torture, inhuman or degrading treatment"
15(1)
(B) The use or threat of violence (whether or not amounting to torture)"
16(1)
(C) Other forms of "oppression "
17(6)
4 The scope and application of the "reliability" rule
(A) A hypothetical test
23(2)
(B) "Anything said or done"
25(2)
C Discretionary Exclusion of Confession Evidence
1 The general principles of discretionary exclusion under PACE section 78
27(3)
2 Breach of the right to legal advice
30(2)
3 Breach of the requirements for recording of interviews
32(3)
4 Other breaches of PACE or the Codes of Practice
35(2)
D Other Issues Relating to Confessions
1 Relevance of confessions for reasons other than their truth
37(1)
2 Evidence of subsequently discovered facts
38(2)
3 Mixed statements
40(1)
4 Safeguards against unreliability
41(1)
5 Use by an accused of a confession by a co-accused
42
7 Identification Evidence
A Introduction
1(2)
B The Problems of Eyewitness Evidence of Identity
1 Miscarriages of justice
3(2)
2 The psychological research
5(2)
(A) Observation
6
(B) Storage and retrieval of memory
7(2)
(C) Evaluation of eyewitness accuracy
8
C Obtaining Eyewitness Evidence of Identity: The Legal Response
9(14)
1 The purpose and scope of Code D generally
10(2)
2 The purpose and scope of Code D: on-the-spot investigations
12(8)
3 The application of Code D and the consequences of breach
(A) An overview of Code D
16
(B) Breach of Code D
20(3)
D Problems of Adducing Identification Evidence at Trial
1 Dock identifications
23(2)
2 Evidence of previous identifications by witnesses
25(2)
3 Identification by the court: evidence of recordings, photographs and photofits
27(2)
E The Evaluation of Eyewitness Evidence of Identification
1 The Turnbull guidelines
29(1)
2 When do the guidelines apply?
30(3)
3 The terms of the warning
33(2)
4 Good and poor quality identifications
35(1)
5 Supporting evidence
36(1)
F Scientific and Other Expert Evidence
37
8 Evidence Obtained By Illegal Or Unfair Means
A Introduction
1(2)
B The Common Law Relating to Illegally or Unfairly Obtained Evidence
1 The general rule
3(3)
2 Exclusionary discretion at common law
(A) The development of the "fairness" discretion
6(2)
(B) R. v Sang
8(4)
C The Statutory Discretions to Exclude Evidence
1 PACE section 82(3)
12(1)
2 PACE section 78
13(1)
D The Application of Section 78
1 General principles
14(1)
2 Illegally obtained evidence
(A) Breaches of PACE and the Codes Of Practice
15(3)
(B) Breaches of the Road Traffic Act in drink-driving cases
18(1)
(C) Other forms of unlawful conduct
19(2)
3 Unfairly obtained evidence
(A) Deception in questioning and abuse of the police role
21(2)
(B) Tricks and traps
23(3)
(C) Entrapment and agents provocateurs
26(6)
E Abuse of Process and Exclusionary Discretion
32
9 Disclosure And Immunity
A Introduction
1(3)
B Disclosure in Civil Cases
4(2)
C Disclosure in Criminal Cases
1 The disclosure issue in context
6(2)
2 Disclosure from arrest to committal
8(2)
3 The Criminal Procedure and Investigations Act 1996
(A) The scheme of the Act
10(1)
(B) The prosecutor's duties of disclosure
11(4)
(C) Defence disclosure
15(4)
D Public Interest Immunity in Civil Proceedings
1 General principles
(A) The nature of the claim for public interest immunity
19(2)
(B) Establishing the grounds of a claim
21(2)
(C) Pre-trial procedure and the rules of disclosure
23(1)
(D) The weakness of class claims
24(3)
(E) Duty or discretion to make a claim
27(2)
2 Balancing public interests in different contexts
(A) National security and defence
29(1)
(B) International relations
30(1)
(C) State papers: matters of high-level government policy
31(1)
(D) Low-level policy communications and routine reports
32(1)
(E) Confidentiality and the protection of sources of information
33(5)
E Public Interest Immunity in Criminal Proceedings
1 The extent of the application of PII in criminal proceedings
38(1)
2 Process of decision-making in PIJ cases
39(2)
3 Fairness and the public interest
41(3)
F Privilege: Negotiations for Settlement and Conciliation
44
10 Legal Professional Privilege
A Introduction
1(1)
B The Lawyer-Client (Legal Advice) Privilege
1 Statement and rationale
2(4)
2 Extent of the privilege
(A) The meaning of "lawyer"
6(1)
(B) Clients and their employees and agents
7(2)
(C) The protected communications
9(3)
3 Loss of privilege
12(1)
(A) Communications in furtherance of crime or fraud
13(4)
(B) Waiver
17(1)
(C) Secondary evidence
18(6)
(D) Court-ordered disclosure: proof of innocence and other public interests
24(3)
C Litigation Privilege
1 Statement and rationale
27(2)
2 Extent of the privilege
(A) The meaning of "lawyer"
29(1)
(B) Clients and third parties
30(1)
(C) The protected communications
31(3)
3 Loss of privilege
34(1)
(A) Court-ordered disclosure: litigation privilege and non-adversarial proceedings
35
PART III ADDUCING EVIDENCE: TRIAL PROCEDURES AND THE PRINCIPLES OF PROOF
11 Burden And Standard Of Proof
A Introduction
1(1)
B The Concepts of Burden and Standard of Proof
1 General definitions
2(3)
2 The different types of burden
5(6)
C Allocation of Burdens in Criminal Cases
1 The presumption of innocence and the general rule on the burden of proof 11--008
2 The common law exception to the general rule: the defence of insanity
11(1)
3 Express statutory exceptions to the general rule
12(1)
4 Implied statutory exceptions to the general rule
13(5)
5 Reverse onuses and compatibility with the presumption of innocence
18(6)
(A) Judicial deference
24(2)
(B) Classification of offences
26(1)
(C) Construction of criminal liability: elements of offences and defences
27(2)
(D) Significance of maximum penalties
29(2)
(E) Ease of proof and peculiar knowledge
31(2)
(F) Presumption of innocence
33(2)
(G) Principles and proportionality
35(6)
(H) Reading down a reverse onus
41(1)
D Allocations of Burdens in Civil Cases
42(2)
E Standard of Proof in Criminal Cases
44(2)
F Standard of Proof in Civil Cases
46(4)
G Burden and Standard of Proof of Foundation Facts for Admissibility of Evidence
50
12 Forms Of Proof And Alternatives To Proof
A Introduction
1(1)
B Testimony
2(2)
C Documentary Evidence
4(10)
1 Proof of the contents of documents
(A) Special statutory provision
5
(B) General statutory provision: criminal proceedings
7(2)
(C) Common law rules
9(1)
(D) General statutory provision: civil proceedings
10(2)
2 Proof of the execution of documents
11
(A) Proof of handwriting and signatures
12(2)
D Real Evidence
14(8)
1 Material objects
15(1)
2 Appearance of persons
16(1)
3 Demeanour of witnesses
17(1)
4 Views and reconstructions
18(1)
5 Mechanical recordings and computer output
19(3)
E Formal Admissions
22(1)
F Presumptions
1 Nature and classification of presumptions
23(4)
2 Particular presumptions and proof of frequently recurring facts
27(1)
G Judicial Notice
28
1 Notorious facts
29(1)
2 Facts judicially noticed after enquiry
30(1)
(A) Political and diplomatic issues
31(1)
(B) Historical, scientific and other issues of learning
32(3)
(C) Issues of custom and practice
35(1)
3 Personal knowledge
36
13 Witnesses
A Introduction
1(2)
B The Power to Call Witnesses
3(2)
C The Accused as a Witness for the Defence
1 Competence and compellability
5(2)
2 Failure to testify: the right to silence in court
7(3)
3 Failure to testify: reform of the right to silence
10(5)
D The Accused as a Witness for the Prosecution
15(2)
E The Spouse of the Accused
17(3)
F Children
1 Historical background to the modern law
20(3)
2 The modern law of competency: criminal cases
23(3)
3 The modern law of competency: civil cases
26(1)
G Persons Under Mental Disability
27(1)
H Oaths and Affirmations
28
14 Examination Of Witnesses
A Introduction
1(2)
B Examination In Chief
3(21)
1 Relevance, credit and previous consistent statements
5(2)
(A) Exceptions to the rules against narrative and hearsay: previous statements of witnesses admissible as evidence of the facts stated as well as evidence of consistency
7(8)
(B) Unclear exceptions: statements by the accused when arrested, when interviewed and when confronted with the discovery of incriminating articles
13
2 Leading questions
15(1)
3 Refreshing memory
16(1)
(A) Refreshing memory in court while testifying
17(2)
(B) Refreshing memory out of court
19(2)
4 Unfavourable and hostile witnesses
21(3)
C Cross-Examination
24(19)
1 General principles
(A) Relevance and admissibility
25
(B) The obligation to challenge the evidence given in chief
27(1)
2 Cross-examination as to credit
(A) Collateral issues and the finality rule
28(3)
(B) Previous inconsistent statements
31(2)
(C) Bad character and previous convictions
33(6)
(D) Bias
39(3)
(E) Disability of the witness
42(1)
D Re-Examination
43
15 Vulnerable And Suspect Witnesses
A Introduction
1(2)
B Vulnerable Witnesses
3(35)
1 Complainants of sexual offences: the use of sexual history evidence
(A) Some general comments
4(3)
(B) The common law
7(1)
(C) "Rape shield" legislation: YJCEAs.41
8(7)
(D) Section 41 and the ECHR article 6
15(3)
(E) Further reform?
18(1)
2 Cross-examination by the accused in person
19(1)
3 Special measures directions
20(5)
(A) Use of screens
25(1)
(B) Live link
26(1)
(C) Evidence given in private
27(1)
(D) Removal of wigs and gowns
28(1)
(E) Video-recorded evidence in chief
29(2)
(F) Video-recorded cross-examination
31(1)
(G) Examination of witness through intermediary
32(1)
(H) Aids to communication
33(1)
4 Anonymity for witnesses
34(4)
C Suspect Witnesses
38
1 Rules of competence
39(1)
2 Exclusionary rules and/or exclusionary discretion
40(1)
3 A general requirement of corroboration for all evidence
41(1)
4 Corroboration requirements for certain types of evidence
42(1)
5 Caution warnings
43(1)
6 Statutory requirements
44(1)
(A) Perjury
45(1)
(B) Speeding
46(1)
(C) Attempts to commit either of the above
47(1)
7 Abolition of common law requirements
48(4)
8 Use of caution warnings
52(1)
(A) Eyewitness identification evidence
53(1)
(B) Witnesses with purposes of their own to serve
54(1)
(C) Mental patients of bad character
55(1)
(D) Confessions by mentally handicapped persons
56
PART IV USING EVIDENCE: THE SCOPE AND LIMITS OF EXCLUSIONARY RULES
16 Hearsay At Common Law And In Civil Proceedings
A Introduction
1(2)
B Statement and Rationale of the Hearsay Rule at Common Law
1 Statement of the rule
3(4)
2 Rationale
7(1)
(A) Hearsay is not the best evidence
8(1)
(B) Hearsay is not given on oath
9(1)
(C) Absence of cross-examination and the difficulty of assessing the weight of hearsay
10(2)
(D) Demeanour of the witness
12(1)
(E) Risk of manufactured evidence
13(1)
(F) Risk of error in transmission
14(1)
(G) Right to confront one's accusers
15(4)
C Application of the Common Law Rule: Hearsay and Original Evidence
19(4)
D Application of the Common Law Rule: Implied Assertions
23(5)
E Statutory Reform---Civil Cases
28
17 The Modern Law Of Hearsay In Criminal Cases
A Introduction
1(3)
B The Scheme of the Act and the Exclusionary Rule
1 Structure of the scheme
4(1)
2 The scope of the exclusionary rule
(A) Generally
5(2)
(B) Implied assertions
7(3)
(C) Negative hearsay
10(1)
C Statutory Exceptions: Section 116---Witness Unavailability
1 Terms and scope of the exception
11(3)
2 Reasons for unavailability of the witness (the "relevant person") 17--012
3 The requirement of leave for admission of a hearsay statement by a witness in fear
14(2)
D Statutory Exceptions: Section 117---Business Documents
16(4)
E Statutory Exceptions: Sections 119 and 120---Previous Statements of Witnesses
20(1)
F The Preserved Common Law Exceptions: Section 118
21(24)
1 Public information, etc
22(2)
2 Reputation as to character
24(1)
3 Reputation or family tradition
25(1)
(A) Declarations as to pedigree
26(1)
(B) Declarations as to public or general rights
27(1)
(C) Reputation as to identity
28(1)
4 Res gestae
29(5)
(A) Spontaneous statements about events in issue: the "excited utterance rule"
31
(B) Statements accompanying and explaining relevant acts
34(1)
(C) Statements relating to physical sensations or mental states
35(5)
5 Confessions etc.
40(3)
6 Admissions by agents, etc.
42
7 Common enterprise
43(1)
8 Expert evidence
44(1)
G Statutory Exceptions: Section 114(1)(d)--Interests of Justice
45(6)
H Statutory Exceptions: Section 121--Multiple Hearsay
51(1)
I Other Provisions
52(1)
J The Impact of Article 6 of the ECHR
53(7)
K Anonymous Hearsay
60
18 Character And Credibility: An Overview
A Introduction
1(4)
B Proof and Prejudice
1 The relevance of evidence of good character
4
2 The relevance of evidence of bad character
5(6)
3 The prejudicial effect of evidence of bad character and other misconduct
7
C Character and Credibility: The Psychology of the Law Relating To Bad Character Evidence
11(6)
1 The divisibility of character
12(4)
2 The relationship between other misconduct and untruthfulness on oath
14
3 Judicial directions on the use of previous convictions and the distinction between issues of guilt and credibility
16(1)
D The Common Law: Evidence of Character in Civil Cases
17(2)
E The Common Law: Good Character of the Accused in Criminal Cases
19(2)
F Bad Character of the Accused in Criminal Cases: The Background to the Criminal Justice Act 2003
1 The common law similar fact rule
21(4)
2 Cross-examination of the accused: The Criminal Evidence Act 1898 section 1(3)
25(3)
3 Reform of the law: the Law Commission proposals
28(2)
4 Reform of the law: Government policy
30
19 Evidence Of Bad Character In Criminal Cases
A Introduction
1(2)
B Structure and Scope of the Act
1 The meaning of "bad character"
3(1)
(A) What is included in section 98
4(2)
(B) What is not included in section 98
6(3)
2 Effect of the Act on the previous law
9(1)
3 Admissibility of evidence of the defendant's bad character: the seven "gateways "
10(1)
C General Principles of Interpretation of the New Scheme
11(4)
D The Gateways in Detail
1 Gateway (a): evidence adduced by agreement of all parties
15(1)
2 Gateway (b): evidence adduced by the defendant himself
16(1)
3 Gateway (c): important explanatory evidence
17(2)
4 Gateway (d): evidence relevant to an important matter in issue between the defendant and the prosecution
19(3)
(A) Evidence of bad character to prove D's propensity to commit the kind of offence charged
22(2)
(B) Evidence of bad character to prove D's propensity to be untruthful
24(1)
(C) Discretionary exclusion of evidence of bad character via gateway (d)
25(1)
5 Gateway (e): substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
26(2)
(A) Evidence of the bad character of the accused (Dl) adduced by a co-accused (D2) as relevant to D2's defence
28(4)
(B) Evidence adduced by a co-accused (D2) to prove the propensity of the accused (D1) to be untruthful
32(5)
6 Gateway (f): evidence to correct a false impression given by the defendant
37(1)
(A) Evidence of good character and its rebuttal: the previous law
38(1)
(B) Evidence to correct a false impression: the new law
39(6)
7 Gateway (g): the defendant has made an attack on another person's character
45(2)
(A) Interpretation of gateway (g) and section 106: when is an attack made?
47(1)
(B) Interpretation of gateway (g) and section 106: who can be attacked?
48(1)
(C) Interpretation of gateway (g) and section 106: what is an attack on character?
49(4)
(D) Interpretation of gateway (g) and section 106: the scope and purpose of the evidence of the defendant's bad character
53(3)
E Cogency and Contamination
1 Cogency of evidence of bad character
56(2)
2 Contamination of evidence of bad character
58
20 Opinion and Expert Evidence
A Introduction
1(2)
B Non-Expert Opinion
3(2)
C Expert Evidence
5(21)
1 Matters which the court considers call for the special skill or knowledge of an expert: the helpfulness test
6(5)
2 Reliability of expert evidence
11(5)
3 Who is an expert?
16(1)
4 The role of an expert witness
17(2)
5 The ultimate issue rule
19(3)
6 Hearsay and the foundation of expert opinion
22(1)
(A) Primary facts
23(1)
(B) Expert's facts
24(2)
D Judgments and Verdicts in Other Proceedings
26(881)
1 The rule in Hollington v F Hewthorn & Co Ltd
27(1)
2 Criminal cases: PACE section 74
28(1)
(A) Admissibility of the conviction of a person other than the accused
29(3)
(B) Discretionary exclusion of the conviction under PACE section 78
32(2)
3 Civil cases: Civil Evidence Act 1968 sections 11-13
34(873)
Index 907